International justice, wild west vs ICC: a coming crisis

The killing of Osama bin Laden and arrest of Ratko Mladic highlight the precariousness of international order and international law as much as their advance, says Martin Shaw.

Martin Shaw
Martin Shaw
31 May 2011

Two of the world’s most notorious mass murderers and fugitives from justice, Osama bin Laden and Ratko Mladic, have been apprehended in a single month. This should be cause for great celebration, but instead the contrasting outcomes of these events only underline the precariousness of international order and international law.  

Bin Laden, the al-Qaida leader who ordered the attack which murdered almost 3,000 people in New York and Washington on 11 September 2001, was tracked down by United States special forces in Abbottabad, Pakistan, and killed instantly. Mladic, the general commanding the Bosnian-Serb forces that slaughtered over 8,000 Muslim men and boys at Srebrenica in 1995, was finally arrested by Serbian police in northern Serbia and has been sent to join his political collaborator, Radovan Karadzic, on trial at the International Criminal Tribunal for Former Yugoslavia in The Hague.

What explains these very different outcomes? Clearly the seriousness of their crimes has nothing to do with it. Nor is the evolution of international legal institutions an explanation: the fact that there is an international tribunal for ex-Yugoslavia but not for international terrorism is only because the United States helped push the United Nations to establish the former, but eschewed the establishment of the latter in favour of the so-called “war on terror”.  

The establishment of the International Criminal Court (ICC), a permanent court for this type of crime, had been agreed by the time of the 2001 attacks, but the Rome statute which established the court had not entered into force because insufficient states had then ratified it: the US was prominent among those that had not done so. In any case, an international court was not necessary to try Osama bin Laden: his crimes could just as easily have been tried in the US courts and it is difficult to think that the US could not have secured his apprehension and extradition.

The only explanation for the differences in the two recent events is the extraordinary attitude of the US to international law-enforcement and justice. 150 states, over three-quarters of all recognised states, have now signed the Rome statute which established the ICC, although over thirty of these have not yet ratified the treaty. The US is in the strange position, in unholy alliance with Israel and Sudan, of having “unsigned” the treaty (the original signature was in the last year of the Bill Clinton administration) by formally withdrawing its intent to ratify.  

The bottom line, for the US, is that American soldiers and officials should not be subject to international jurisdiction. The former president George W Bush went to extraordinary lengths to cajole and blackmail as many states as possible into agreements which would prevent US personnel ever being brought before international justice. The US was even willing to agree to support the United Nations referring Sudanese leaders to the ICC for the Darfur genocide, although refusing in principle to allow its own citizens to be tried there.

A country which proudly claims to be founded in law, and in which all areas of life are subject to the most extensive litigation, and is willing to support international justice for others, asserts its own complete exemption from international jurisdiction: this would be comical if it did not have such dire consequences.  

The two most populous countries in the world, China and India have neither signed the Rome statute nor felt under great pressure to support the ICC. Since these countries will exert increasing influence over world politics, the long-term prospects of international criminal justice are (on this ground alone) highly problematic.  

Barack Obama and executive justice

In the short term, the United States and its western allies remain in pole position in international politics. Barack Obama’s claim that they represent progressive “values”, however, is deeply tarnished by the United States’s position on international justice. The manner of bin Laden’s end strongly underlines this point, though the failure of Obama to close Guantanamo Bay and ensure that its detainees are tried in proper courts show the wide scope of his failure to stand up for law in the post-Bush years.

When Bush declared that 9/11 was an “act of war” and pledged the US to the “war on terror”, he proclaimed that the perpetrators were “wanted - dead or alive”. In response to al-Qaida’s appropriation of the Hollywood disaster movie, Bush offered the western. His wild-west image of justice accompanied the campaign to bomb al-Qaida and the Taliban into submission.  

This was an extraordinary abandonment of the position of criminalising terrorism, which all western governments, including the US, had adopted in the previous decades. Margaret Thatcher, after all, had not responded to IRA attacks by bombing the heartlands of IRA support in Northern Ireland such as Belfast’s Falls Road or parts of Fermanagh or Armagh;  nor had the French bombed the banlieues or Algeria in revenge for Islamist terror attacks; nor the Spanish the Basque country after ETA bombings.  

The “global war on terror” as it even more grandly became styled was more a framework of opportunity for military adventure than a way of combating al-Qaida. The real marginalisation of Islamist terror, which since 2005 has failed to mount a significant attack on a western city, has been achieved by law rather than war: by unglamorous policing, intelligence, administrative and legal measures.  

Obama could have gone a long way towards redeeming Bush’s comic-book view of justice if he had captured - or even made a serious attempt to capture - bin Laden in order to bring him before a properly constituted court. Instead it is utterly clear that there was no intention to arrest him, and that this was every bit an assassination, in defiance of Pakistani law (even if there was covert connivance by that country’s authorities) and of international law. The deliberate, wholesale abandonment of law is heavily underlined by the film of Obama and Hilary Clinton watching the operation against bin Laden as it unfolded.

So Obama - the constitutional lawyer, the voice of reason, who was elected partly by protesting Bush’s illegal invasion of Iraq (even if he did not identify its illegality), who ended the use of the term “war on terror” - not only failed to end (as he pledged) the extra-legal detention and condemnation of “terrorist” detainees, but in the end concluded the campaign against bin Laden in the spirit and the letter of Bush’s initial, extravagant, declaration of “war”.  

In his speech in London, Obama proclaimed: “The time for our leadership is now.” The hollowness of his rhetoric has rarely been so obvious.

A general crisis of international justice?

The twist here is that such a development has occurred at a time when international order and justice are proclaimed as never before, in the responses of international institutions to the repression of the Arab spring as well as to various situations in Africa.  

The UN Security Council was able to authorise a “humanitarian” intervention in Libya - in apparent contrast to the situation over Kosovo in 1999, when Russia and China obliged the west to act alone. The International Criminal Court, likewise, has been quick to investigate human-rights violations in Libya and to bring charges against the Gaddafi family.

Yet the shallowness of these responses is evident in many ways; not least in Nicolas Sarkozy’s rush to abandon freedom of movement for European citizens in order to block a few of the miserable refugees from Libya arriving in France, at the same moment that his air-force is bombing Libya in the name of human rights.   

The United States France and Britain have made only timid protests against the extreme repression being carried out by Bashir al-Assad’s dictatorship in Syria. No measures of humanitarian protection, military or otherwise, have been proposed for the civilian population there, nor for the victims of pro-western regimes in Yemen and Bahrain. Although the situation in Libya is unique in having reached the level of all-out civil war, and this might be a valid reason for intervening military only there, no such distinction could justify the lack of legal attention to the crimes of other regimes.

The ICC is, in principle, independent of western governments, and it may be that it is at this moment planning to investigate the enormous violence against protesters in several countries of the Arab world. It will not need to do so in Egypt, where national courts will try former president Hosni Mubarak; but there can be no reason of principle why Syria, Yemen or Bahrain should escape ICC scrutiny for “crimes against humanity”, one of the four types of crime for which the court has jurisdiction.

Crimes against humanity, as defined by the ICC, include “murder; extermination; torture; rape; political, racial, or religious persecution and other inhumane acts” which “reach the threshold of crimes against humanity ... if they are part of a widespread or systematic practice.” The threshold has yet to be tested in cases like this, but it seems almost certain that the campaign of violence in Syria (at least) would come within it.

However it is difficult to see the ICC acting against other governments without being assured of support from the US and other western states, since authoritarian governments in China and elsewhere will no doubt vigorously contest any general extension of ICC investigations. So this is where US double-standards will be particularly debilitating, if it denies the ICC the political cover it needs to operate consistently even within the current Arab frame. Obama was right that in the present period, the western states can remain “the catalysts for global action”. But he fails to deliver.

The whole world can see that in Syria, Yemen and Bahrain, as well as in Libya, there has been extensive, brutal repression. The world will not understand that international law applies in one country but not in others where similar violence is occurring on similar scales in similar contexts with a single international wave of protest and repression.

Is it possible to defend international justice?

Law does not exist in a social vacuum. Legal norms always reflect social understandings of right and wrong, and the power relations within society. Law-enforcement and judicial decision making always respond to political contexts, and it is naive not to recognise this. Yet law needs legitimacy, in two senses: that it reflects shared social understandings and that (in general if not in every case) it is possible to see in it something apart from particular political or other interests.

International law is hugely more problematic than law within the nation-state, for the reason that global social understandings are weaker and that an impartial framework for enforcement has been lacking. In the slow expansion of international justice, the political context has always been very obvious. Yet it has been possible to argue that it is better to have some international law, even if inconsistently enforced across the world, than none at all.  

There are elements of common understanding: in every part of the world, people agree that crimes against humanity, genocide, war crimes and international aggression (the crimes within the jurisdiction of the ICC) are wrong, even if they might disagree about how these crimes are prosecuted in particular cases. There is also, in principle, much agreement about enforcement: even if the US, China and India disagree, the majority of the world’s states signed up to the ICC represents an emergent consensus.

It is in this context that the contrast between the treatment of Osama bin Laden and Ratko Mladic is so damaging. The legal (as well as military) targeting of the Gaddafis to the neglect of the Assads and the Bahrain monarchy only reinforces the impression. The image of the most powerful state, under its most upright president of recent decades, so eloquent in affirming international principles and so willing to abandon them when it suits him, does huge damage to the credibility of international order and justice.  

Such cases are litmus-tests for hundreds of millions of people who are becoming aware of international justice: and for them it may be justice itself, as well as Barack Obama’s judgment, that is lacking. 

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